Last month, attorney and photographer Kirsten Kowalski deleted her Pinterest inspiration boards.
Those stipulations are troubling, attorneys say. Shy of following Kowalski’s lead and deleting your page, though, the most that users can do is to be as careful as possible.
Is it a real risk?
As Kowalski pointed out, the idea that Pinterest would set its terms so that any user pinning a photo that he or she didn’t own or have permission to use seems contrary to the site’s purpose, since it’s built around quickly sharing images. But Molly DiBianca, an attorney with Young Conaway Stargatt and Taylor, says that’s how it is.
“At the moment, there is very little that can be done to avoid infringing copyright if you are a Pinterest user,” she says. “The only way to pin pictures without violating the site’s terms of service and the picture owner’s copyright is to only pin pictures that you’ve taken yourself.”
Repinning images already on Pinterest counts, too, DiBianca says.
Bruce Johnson, an attorney with Davis Wright Tremaine, agrees: “The website may have DMCA (Digital Millennium Copyright Act) protections for user-generated content. The users don’t and could be exposing themselves to a significant legal risk.”
In a discussion on Quora, a few commenters suggest that using Pinterest ought to be safe because of the Ninth Circuit United States Court of Appeals decision in the case Kelly v. Arriba Soft Corp. In that case, the court ruled that using thumbnail images amounted to fair use.
But Kowalski argued in her blog post that Pinterest doesn’t use thumbnails.
“Think about it—how many times have you actually clicked through a photo on Pinterest to view the original site? Most of us just repin and move on.”
A few days after Kowalski’s initial post, Pinterest founder Ben Silbermann called her to ask for suggestions for ways to alleviate her copyright concerns.
“He knows there are issues with Pinterest and the fear of claims of copyright infringement, and he wants to figure out a way to make ‘his little Web page’ … work within the confines of the law and in a way where photographers and every user feels comfortable,” she wrote.
Changes may be on the way, but they’re not going to be easy to formulate, DiBianca says.
“It appears that the company recognizes that there are issues and is at least willing to consider the options. The bad news is that there may not be a whole lot of options. But for those of us who are loyal Pinners, we’ll keep our fingers crossed.”
For now, Johnson suggests users should shield themselves by contacting copyright owners before posting images.
“Often, online photos will include credits to the photographer, which should enable such a search.”
However, DiBianca notes that contacting a photographer every time you want to post an image turns the fun of Pinterest into work. Suddenly, the site goes from a spontaneous place where you pin things as you see them to one where a single pin is a weeklong process.
Photographers have big concerns about Pinterest’s terms, too. Many want to use the site to promote their work, but DiBianca says pinning an image is seriously problematic for photo owners.
“According to the Pinterest terms of service, you release all rights you have in a picture once you pin it,” she says.
Specifically, here’s what the terms say:
“By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services.”
Until things on the site change, it may be hard to get some photographers to agree to have their work posted there.